People v. Brown

• Decision Date: 06 July 2000
• Citation: 274 A.D.2d 609,710 N.Y.S.2d 194
• Court: New York Supreme Court — Appellate Division
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>DAVID A. BROWN, Appellant.

274 A.D.2d 609

710 N.Y.S.2d 194

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.DAVID A. BROWN, Appellant.

Decided July 6, 2000.

Cardona, P. J. and Peters, J., concur.

Crew III, J.

Prior to trial, both the prosecutor and defense counsel stipulated to the exclusion of witnesses and Supreme Court so ordered. Thereafter, defendant's 13-year-old daughter, an alibi witness, apparently was present in the courtroom throughout much of the People's case. Consequently, the People moved to preclude her testimony, which motion was granted. Defendant appeals contending, inter alia, that Supreme Court's ruling constituted reversible error. We agree and, accordingly, reverse.

It is axiomatic that when a defense witness in a criminal prosecution is prospectively excluded from testifying, the defendant's 6th Amendment rights are implicated. It is equally well settled that a defendant's right to present evidence is not absolute but, rather, is subject to the rules of procedure that govern the orderly presentation of evidence at trial (see, Taylor v Illinois, 484 US 400, 410). Indeed, preclusion of the testimony of a defense witness, even where the testimony is highly probative, has been found to be an acceptable sanction for failure to comply with a court order (see, United States v Nobles, 422 US 225, 241; cf., People v Bembry, 258 AD2d 921, lv denied 93 NY2d 897; People v Byrd, 239 AD2d 277, lv denied 90 NY2d 902). That being the case, it seems clear that where a witness violates an order of exclusion, he or she is subject to court-imposed sanctions the severity of which are committed to the sound discretion of the trial court. And while the sanction may include precluding the witness from testifying, such sanction clearly is the most drastic available and would be appropriate only in the most egregious circumstances, such as upon a finding of collusion between defense counsel and the witness to gain some tactical advantage, e.g., tailoring the evidence to counter the prosecution's case (see, 6 Wigmore, Evidence § 1842, at 477-484 [Chadbourn rev 1976]; 1 McCormick, Evidence § 50, at 210-211 [5th ed]). In most situations, however, alternative sanctions, such as an adverse witness charge, most likely would suffice.

Inasmuch as the record here does not support the drastic sanction of preclusion, we conclude that Supreme Court abused its discretion in that regard. It, therefore, was incumbent upon the People to establish that such error was harmless beyond a reasonable doubt (see, People v Almestica, 42 NY2d 222, 226). In our view, the People have failed to meet that burden requiring a reversal and a new trial.

Mugglin, J. (concurring).

While I agree with the majority's conclusion that the judgment of conviction must be reversed, my rationale differs from that of the majority. First, in my view, the majority's reliance on Taylor v Illinois (484 US 400), United States v Nobles (422 US 225), People v Bembry (258 AD2d 921, lv denied 93 NY2d 897) and People v Byrd (239 AD2d 277, lv denied 90 NY2d 902) is misplaced. Those cases involve the exercise of a court's discretion to preclude a prospective defense witness when the defendant has failed to take the proper initiative to comply with a discovery order or a statutory mandate (see, CPL 250.20) by identifying in a timely manner a proposed alibi witness; having failed to so comply, the defendant was properly ordered to suffer the consequences. Here, however, it is the witness who failed to obey the preclusion order, but it was defendant who suffered the consequences.

Further, in my view, the record is adequate to demonstrate that Supreme Court recognized the substantive matter of the witness's expected testimony, the importance of the witness to the defense of the charges and the drastic nature of precluding this witness, who presumptively was the only one who could testify to being with the victim during the time that the victim claimed the crime was committed.^[1] In my view, the testimony of such a witness impinges directly on the issue of guilt or innocence; prohibiting such a witness from testifying because of a violation of a preclusion from the courtroom order so impacts defendant's right to a fair trial^[2] that it is beyond the discretion of ...